Supreme Court of South Carolina, 1819

O'Driscoll v. M'Burney

Supreme Court of South Carolina · Decided May 15, 1819 · Colcock, Gantt, Johnson, Nora, Riiohardson, Trial

2 Nott & McC. 54; 11 S.C.L. 54

Cases that cite this one

3 later published cases cite this decision.

Clemmons v. Nicholson (S.C. 1936)
Cooper v. Armour (U.S. Circuit Court for the District of Northern New York 1890)
Potter v. Casterline (N.J. 1879)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

The opinion of the Court was delivered by

Colcock, J.

The ease does not admit of the least doubt. This was not a prosecution. There can be no prosecution without an arrest. It is indispensably necessary to support this action, that malice (and that the arrest was without probable cause,) be alleged and proved. 2 Sel. IsF. P. 1051. If a man make an affidavit charging the commission of an offence or crime, but never takes out a warrant, although he may subject himself to an action, he will not be liable to this action.2 But if, by any possibility, it could be considered as a prosecution,3 it was necessary *402to show that it was at an end ; and the refusal of the grand jury to act on it, would not have been a final termination of it; for the defendant might have applied to another grand jury, who might have thought proper to present the defendant.

The motion is dismissed.

Nora, Gantt and Johnson, JJ., concurred. RiIOHARDson, J., was absent at the trial of this case.

1 Hill, 199 ; 4 MoC. 357.

Post. 244.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.